Restating the Law on the Investigation of Potentially Unlawful Death: The 2016 Minnesota Protocol


The Office of the United Nations High Commissioner for Human Rights in Geneva (OHCHR) on 24 May 2017 announced the release of the 2016 Minnesota Protocol on the Investigation of Potentially Unlawful Death on its website.

This document is an updated and revised version of the 1991 UN Manual on the Effective Prevention of Extra-legal, Arbitrary and Summary Executions, which through common usage became known as the Minnesota Protocol. The new document is currently available in English, but will be translated into the other five official UN languages and others in due course.

The Minnesota Protocol sets out the international standards for the investigation of suspicious deaths, where States may in one way or another be considered responsible, because its agents may have caused such death, or because the State has failed to exercise due diligence in protecting the victim/s. It also applies to enforced disappearances.

The right to life, as protected for example by article 6 of the International Covenant on Civil and Political Rights, has two components: the prohibition of arbitrary deprivation of life, and accountability where that occurs. Investigations play a central role in securing accountability. As such, the Protocol can be seen as a restatement of a central part of the protection of the right to life, often described as the “supreme right.”

The Protocol is aimed at informing and guiding the actions of crime scene investigators, medical practitioners, lawyers, commissions of inquiry and others involved in investigating suspicious deaths. The Minnesota Protocol plays a similar role in the context of the right to life to that of the Istanbul Protocol to in the context of torture.

The 2016 revision of the Protocol was undertaken by a group of legal and forensic experts over a period of two years under the auspices of the Special Rapporteur on extrajudicial, summary or arbitrary executions (a position the current author held at the time) and the OHCHR.

A scoping exercise before the revision showed that the original Minnesota Protocol was regarded as the gold standard in the area of forensic investigations by medical practitioners, and in this context had been relied upon by several international and national tribunals. At the same time, it had to some extent become outdated in the 25 years since it was first adopted, in that new medical developments, such as DNA evidence, were not reflected. The legal section was also underdeveloped in the original version. The revised text seeks to provide a stronger basis for the protection of the right to life by ensuring the Protocol sets out both the state of international law and best forensic practice in the investigation of suspicious deaths.

The new version of the Protocol, like the original one, is an expert document whose legitimacy resides in the wide acceptance of the Protocol since its inception, and the level of expertise reflected in its contents. Several states were among those who submitted comments during the various rounds of public consultation conducted during the revision.

The Protocol sets guidelines for the procedures to be followed during death investigations from the outset to the conclusion. On the question when an investigation must be undertaken, the Protocol (in para 15) provides that:

A State’s duty to investigate is triggered where it knows or should have known of any potentially unlawful death, including where reasonable allegations of a potentially unlawful death are made.

The Protocol recalls that, under international law, investigations must be prompt, effective and thorough, independent and impartial, and transparent. Investigations of law enforcement killings, for example, must be capable of being carried out free from undue influence that may arise from institutional hierarchies and chains of command. Inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances, and torture must be conducted under the jurisdiction of ordinary civilian courts. Investigations must also be free from undue external influence, such as the interests of political parties or powerful social groups.

The Protocol deals primarily with investigations outside the context of the conduct of hostilities. However, as far as the conduct of hostilities is concerned, it provides as follows (para 21):

Where, during the conduct of hostilities, it appears that casualties have resulted from an attack, a post-operation assessment should be conducted to establish the facts, including the accuracy of the targeting. Where there are reasonable grounds to suspect that a war crime was committed, the State must conduct a full investigation and prosecute those who are responsible. Where any death is suspected or alleged to have resulted from a violation of IHL that would not amount to a war crime, and where an investigation (“official inquiry”) into the death is not specifically required under IHL, at a minimum further inquiry is necessary. In any event, where evidence of unlawful conduct is identified, a full investigation should be conducted.

There can be little doubt that the Protocol will at some point in the future have to be updated again, if it is to remain a living and a relevant document. For the time being, however, it is hoped that it will help to counter impunity and lift the standard of protection of the right to life in countries across the globe, regardless of the resources available. When unlawful death occurs, the norm must be restored through a proper investigation and in appropriate cases, prosecution. Proper investigations also play a central role in preventing future unlawful deprivations of life. 

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About the Author(s)

Christof Heyns

Professor of Human Rights Law and Director of the Institute for International and Comparative Law in Africa at the University of Pretoria